GOMEZ-BELENO V. HOLDER

2nd Circuit

Gomez-Beleno v. Holder (2nd cir., July 7, 2011)

CALABRESI, Walker, Wesley

Summary: “Gilberto William Gomez-Beleno and Sandra Avila-Gaviria (collectively “the Petitioners”) successfully sought review by this Court of a final order of removal. They now move for costs and fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). The Government opposes the motion, arguing that the Petitioners are not entitled to a fee award on the ground that the “position of the United States was substantially justified.” Id.§ 2412(d)(1)(A). We find that the position of the United States was not substantially justified. We therefore grant the Petitioners’ motion and award them $9,690.00 in fees and $751.04 in costs.”  After two Second Circuit remands due to “significant errors of law and fact” by the BIA, petitioner had been granted asylum.

In reaching its EAJA award, the Court used the following reasoning:

“[A]ttorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A)(ii). The Petitioners calculate their fees at a rate of $150 per hour—a $25 increase over the statutory rate. They explain that the upward adjustment is appropriate in light of “the scarcity of free legal representation for asylum seekers and the increase in the cost-of living.” The Government does not oppose a cost-of-living increase, but it “opposes an enhancement of fees on any other basis.” Given that a $150-per-hour rate is much in line withrecent cost-of-living adjustments granted by courts of appeals in EAJA cases, see, e.g., Tchemkou v. Mukasey, 517 F.3d 506, 512 (7th Cir. 2008) (finding $161.85 appropriate), and given that the Government does not oppose a cost-of-living increase, we conclude that the $150-per-hour rate here sought is justified on cost-of-living grounds, and express no view as to the other bases for the rate proffered by the Petitioners.”

Read the opinion here.